DAVITA SIEGEL, Petitioner-Appellee, v. THE LAKE COUNTY OFFICERS ELECTORAL BOARD et al., Respondents (Eric Burgess et al., Respondents-Appellants).
No. 2-08-0626
Second District
September 9, 2008
385 Ill. App. 3d 452
Based on the foregoing, the judgment of the circuit court of Du Page County is reversed.
Reversed.
McLAREN and BOWMAN, JJ., concur.
DAVITA SIEGEL, Petitioner-Appellee, v. THE LAKE COUNTY OFFICERS ELECTORAL BOARD et al., Respondents (Eric Burgess et al., Respondents-Appellants).
Second District No. 2-08-0626
Opinion filed September 9, 2008.
Christopher M. Kennedy, of Kennedy, Pierson & Strachan, LLP, of Lake Forest, for appellee.
JUSTICE HUTCHINSON delivered the opinion of the court:
Respondents Eric Burgess, Donald R. Castella, and Joel A. Finfer appeal the trial court‘s order reversing the decision of the Lake County Officers Electoral Board (the Board) to exclude petitioner, Davita Siegel, from the November 2008 general election ballot as the Democratic candidate for member of the Lake County Board. On appeal, respondents assert that the Board correctly excluded petitioner from the ballot and contend that (1) the trial court erred when it determined that respondents waived their argument that the district committee meeting took place on a date other than that set forth in the resolution to fill the vacancy in nomination, and (2) the trial court erred when it determined that the placement of an incorrect date on the resolution was a de minimis error and constituted substantial compliance with a mandatory requirement of section 7-61 of the Election Code (
The underlying facts reflect that no candidate appeared on the February 2008 Democratic primary ballot for the office of member of the Lake County Board, District 20, and a vacancy in nomination therefore existed. The last day to fill the vacancy in nomination was April 7, 2008, and, on that date, petitioner filed her “Statement of Candidacy for District 20” as well as a “Resolution to Fill a Vacancy in Nomination” (the resolution) with the Lake County clerk‘s office. The resolution was executed by the “County Board Committee for the Democratic Party for the 20th District” (the District Committee). The resolution bore the signatures of Philip Hirsh, as the District Committee chairman, and Ivan Phillips, as the District Committee secretary, and stated that the District Committee met on April 6, 2008, and appointed petitioner to fill the vacancy at that time. The resolution was prepared and notarized by Nancy Shepherdson, and the jurat stated that the notarization occurred on April 6, 2008. Shepherdson also notarized petitioner‘s statement of candidacy, with that document also bearing the date of April 6, 2008.
Respondents filed a verified objectors’ petition, claiming that the District Committee meeting (1) was never properly assembled, and (2) never occurred at all. In response, petitioner filed a motion to strike and dismiss respondents’ objection, alleging that the District Committee had properly assembled, notice had been provided, and she was
Respondents thereafter filed a response to petitioner‘s motion to strike and dismiss, in which they raised a specific objection to the facial validity of the resolution. In their response, respondents alleged that the resolution did not reflect the true date of the meeting. Petitioner filed a reply, objecting to respondents’ response. Petitioner argued that respondents improperly amended their objectors’ petition in violation of section 10-8 of the Election Code (
At the hearing before the Board, one of the Board members described Shepherdson‘s entry of the incorrect date on the resolution as a “good faith error,” and the other Board members described the entry as a scrivener‘s error. At the conclusion of the hearing, the Board determined, with one member dissenting, that respondents did not waive their objection to the sufficiency of the papers for petitioner‘s failure to include the true date of her nomination. The Board found that the nature of respondents’ objection pertained to the manner of petitioner‘s selection by the District Committee and was, therefore, broad enough to encompass not only the objection that no meeting ever occurred but also the objection that no meeting occurred on the date specified in the resolution.
The Board found that the District Committee was duly constituted, had met, and had selected petitioner to fill the Democratic vacancy in nomination for the office of county board member on April 5, 2008. The Board also found that the District Committee members signed the resolution on April 5, 2008, and that petitioner attended the selection meeting and signed her statement of candidacy on April 5, 2008.
The Board further found that the statutory provisions for filling a vacancy in nomination were mandatory and that petitioner‘s nominating papers did not disclose the true date of her selection to fill the vacancy in nomination. The Board found that it was duty-bound to enforce the mandatory provisions of the Election Code even where no evidence of bad-faith noncompliance was presented. The Board sustained respondents’ objection and ordered that petitioner‘s name not appear on the November 2008 general election ballot.
Petitioner filed an action in the trial court for judicial review of the Board‘s decision, and the trial court reversed. The trial court determined that respondents had waived their objection that the resolution did not reflect the true date of the meeting. The trial court further determined that the placement of an incorrect date on the resolution was a de minimis error and constituted substantial compliance with the Election Code. The trial court thus ordered petitioner‘s name to appear on the November 2008 general election ballot.
Respondents timely appealed, and we expedited this appeal on our own motion pursuant to Supreme Court Rule 311 (155 Ill. 2d R. 311).
We are required to review the Board‘s decision rather than the trial court‘s decision. See Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 III. 2d 200, 212 (2008); see also Bergman v. Vachata, 347 III. App. 3d 339, 344 (2004), citing Lockhart v. Cook County Officers Electoral Board, 328 Ill. App. 3d 838, 841 (2002). We view an electoral board as an administrative agency (Cinkus, 228 Ill. 2d at 209), and the standards of review are essentially identical (Cullerton v. Du Page County Officers Electoral Board, 384 Ill. App. 3d 989, 991 (2008)). An electoral board‘s findings of fact are deemed prima facie true and correct and will not be overturned on appeal unless they are against the manifest weight of the evidence. Cullerton, 384 Ill. App. 3d at 991, citing Cinkus, 228 Ill. 2d at 210. However, an electoral board‘s decisions on questions of law are not binding on a reviewing court, and a reviewing court will review de novo such questions. Cullerton, 384 III. App. 3d at 991, citing Cinkus, 228 Ill. 2d at 210-11. An electoral board‘s rulings on mixed questions of law and fact—questions on which the historical facts are admitted, the rule of
Respondents contend first that the trial court erred when it found that they had waived their argument that the District Committee meeting took place on a date other than that set forth on the resolution to fill the vacancy in nomination. Respondents argue that their objection challenging the existence of an actual meeting was sufficient to encompass their specific objection that the meeting took place on a date other than that set forth in the resolution. Alternatively, respondents argue that, once the Board heard evidence that the meeting did not occur on the date noted in the nominating papers, the Board was compelled to rule on that evidence and find the nomination to be invalid.
The Board is a creature of statute and its authority is derived from our legislature. Delay v. Board of Election Commissioners, 312 Ill. App. 3d 206, 209 (2000), citing Kozel v. State Board of Elections, 126 III. 2d 58, 68 (1988). Section 10-8 of the Election Code states in pertinent part:
“The objector‘s petition shall give the objector‘s name and residence address, and shall state fully the nature of the objections to the certificate of nomination or nomination papers or petitions in question, and shall state the interest of the objector and shall state what relief is requested of the electoral board.”
10 ILCS 5/10-8 (West 2006) .
The Election Code does not allow parties to file amendments to their objectors’ petitions and does not authorize an electoral board to raise sua sponte objections to nominating petitions. Delay, 312 Ill. App. 3d at 210, citing Reyes v. Bloomingdale Township Electoral Board, 265 Ill. App. 3d 69, 72 (1994). This issue raises no factual question but only a question of law, which we review de novo. See, e.g., Cullerton, 384 Ill. App. 3d at 991, citing Cinkus, 228 Ill. 2d at 210-11.
Paragraph nine of respondents’ objectors’ petition stated the nature of their objection, alleging that the appointment of petitioner was improper because, on information and belief, the District Committee:
“was never validly assembled *** and *** no such meeting ever did occur as required by law *** in order to validly execute the resolution purporting to nominate the Candidate to fill the vacancy in nomination.”
The provisions of the Election Code are mandatory and require the objectors to “state fully” the nature of their objection (see
Respondents’ objection pertaining to the occurrence of the District Committee meeting was sufficient to include the specific objection pertaining to the true date of the meeting. We therefore conclude that the trial court erred when it ruled that respondents had waived their argument that the District Committee meeting took place on a date other than that set forth in the resolution to fill the vacancy in nomination. We hold that the Board properly determined that respondents had not waived the ability to challenge the sufficiency of the papers for petitioner‘s failure to include the true date of her nomination. Our resolution of this contention obviates the need to address respondents’ alternative argument on the issue of waiver.
Respondents next contend that the trial court erred when it determined that the placement of an incorrect date on the resolution was a de minimis error and constituted substantial compliance with the mandatory requirement of section 7-61 of the Election Code (
Section 7-61 provides in pertinent part:
“The resolution to fill a vacancy in nomination shall be duly acknowledged before an officer qualified to take acknowledgments of deeds and shall include, upon its face, the following information:
(a) the name of the original nominee and the office vacated;
(b) the date on which the vacancy occurred;
(c) the name and address of the nominee selected to fill the vacancy and the date of selection.”
10 ILCS 5/7-61 (West 2006) .
The Board found that the true date the District Committee duly constituted, met, selected petitioner to fill the vacancy in nomination, and signed the resolution was April 5, 2008. The Board found that the resolution incorrectly averred that the meeting occurred on April 6, 2008. The Board found that Shepherdson acknowledged that she incorrectly wrote the date of April 6, 2008, in the jurats on the resolution and the statement of candidacy. The Board, however, found that the Election Code provisions for filling a vacancy in nomination were mandatory and that petitioner‘s nominating papers did not disclose the true date of her selection to fill the vacancy in nomination. The Board concluded that it was duty-bound to enforce the mandatory provisions of the Election Code even where no evidence of bad-faith noncompliance was presented.
Respondents argue that the trial court had no basis upon which it could have determined that the incorrect date on the resolution was a scrivener‘s error and that the resolution substantially complied with the Election Code, because the Board made no such findings. Respondents argue that the provisions of section 7-61 are mandatory and should be construed strictly to ensure the integrity of the ballot. Because this case involves an examination of the legal effect of a given set of facts—whether the information contained in the resolution complied with the requirements of the Election Code—the issue is best considered a mixed question of fact and law. See, e.g., Cardona v. Board of Election Commissioners, 346 Ill. App. 3d 342, 343 (2004) (stating that whether information contained in a receipt filed by a candidate complied with the requirements of the Election Code was a mixed question of fact and law). For mixed questions of fact and law, a clearly erroneous standard of review applies. See Cinkus, 228 Ill. 2d at 211; see also City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998). Accordingly, we will not reverse the Board‘s decision unless it is clearly erroneous. Belvidere, 181 Ill. 2d at 205.
Under the plain language of the Election Code, “[t]he resolution to fill a vacancy in nomination *** shall include, upon its face, *** the name and address of the nominee selected to fill the vacancy and the date of selection.”
The special concurrence employs language from Williams v. Butler, 35 Ill. App. 3d 532 (1976), reflecting, inter alia, that the right of access to a place on the ballot ” ‘should not be impeded by unreasonable, frivolous, or unnecessarily limiting requirements, ” to support extending the rationale from Craig v. Peterson, 39 Ill. 2d 191 (1968), and holding that a court may strictly enforce the Election Code‘s restrictions on candidacy to deny a candidate ballot access only where doing so is reasonable and necessary for the purposes of the Election Code. 385 Ill. App. 3d at 465, quoting Williams, 35 Ill. App. 3d at 536. In doing so, however, the special concurrence would interpret the date requirement here as being directory and not mandatory. 385 Ill. App. 3d at 465.
In Craig, our supreme court permitted the relaxation of a mandatory ballot-initialing requirement under the Election Code, but did so under very limited factual circumstances not present here. See Craig, 39 Ill. 2d at 197, 200-01 (pertaining to counting uninitialed absentee ballots and stating that the statutory commands would be “held only directory when applied in the context of the case before us“). In Reynolds v. Champaign County Officers Electoral Board, 379 Ill. App. 3d 423, 424 (2008), the reviewing court recognized our supreme court‘s abrogation of the Williams decision in Bowe v. Chicago Electoral Board, 79 Ill. 2d 469, 470 (1980), which held that the requirements of section 7-10 of the Election Code were mandatory and not directory. In DeFabio v. Gummersheimer, 192 III. 2d 63, 66-67 (2000), our supreme court reaffirmed the mandatory nature of the initialing requirement of section 24A-10.1 of the Election Code. Given the plain language of section 7-61, the limited application of Craig, and the questionable authority of Williams, as well as our supreme court‘s reaffirmation of the mandatory nature of the Election Code‘s provisions, we decline to reclassify the date requirement of section 7-61 from mandatory to directory.
Respondents argue that the inclusion of an incorrect date on the face of the resolution must be grounds for striking the papers and, in support of their argument, cite In re Objection of McSparin, 352 III. App. 3d 352 (2004), and Zerante v. Bloom Township Electoral Board, 287 Ill. App. 3d 976 (1997). In both McSparin and Zerante, the reviewing court affirmed the invalidation of the candidate‘s nomination papers because the papers were facially invalid for not containing any date of selection on the face of the resolution, thus rendering the resolution legally insufficient. McSparin, 352 Ill. App. 3d at 356-57; Zerante, 287 Ill. App. 3d at 980. Our case is distinguishable from both McSparin and Zerante, however, in that petitioner‘s resolution was facially valid, and both the true date of selection and the incorrect date fell within all statutory time constraints. See
The provisions of the Election Code are designed to protect the integrity of the electoral process. Welch v. Johnson, 147 Ill. 2d 40, 56 (1992). Ultimately, though, access to a place on the ballot is a substantial right and not to be lightly denied. Nader v. Illinois State Board of Elections, 354 Ill. App. 3d 335, 345 (2004), citing Welch, 147
Here, other than objecting to the date of selection, respondents do not challenge the form of petitioner‘s nomination papers, their timeliness, or their authenticity. Petitioner‘s resolution was duly acknowledged pursuant to section 7-61, and the resolution included, on its face, the name of the original nominee and the office vacated; the date on which the vacancy occurred; and the name and address of the nominee selected to fill the vacancy. But for the scrivener‘s error, petitioner‘s resolution complied in every mandatory aspect of section 7-61. Further, this type of error does not impair the integrity of the electoral process, as one of the board members herself characterized the error as “a good faith error.” Under the circumstances presented, we conclude that petitioner has substantially complied with section 7-61 of the Election Code, thus satisfying the mandatory provision in question.
We affirm the judgment of the circuit court of Lake County.
Affirmed.
BURKE, J., concurs.
JUSTICE O‘MALLEY, specially concurring:
Although I agree with the result the majority reaches in this case, I disagree with its analysis.
As the majority notes, section 7-61 of the Election Code provides that a “resolution to fill a vacancy in nomination *** shall include, upon its face, *** the date of selection.”
There are two published decisions addressing resolutions that did not meet the second requirement—the date requirement—of section 7-61. In the first case, Zerante, the resolutions at issue indicated the date on which they were signed, but they gave no indication of the date on which the candidate had been selected for nomination. Zerante, 287 Ill. App. 3d at 979. Though the court was able to deduce from the record that the selection must have taken place within a seven-day period, it could reach no conclusion as to whether the selection took place within three days of the filing of the resolutions. Zerante, 287 Ill. App. 3d at 979. Thus, the resolutions’ failure “to specify the date upon which the petitioner was selected *** prevent[ed] a determination as to whether the resolutions were transmitted to the certifying authority in a timely fashion.” Zerante, 287 Ill. App. 3d at 979. The court in Zerante further held that the date requirement of section 7-61 must be considered mandatory under the circumstances presented there: “It is this inability of the certifying authority to determine [whether the resolution was timely filed] *** that leads us to conclude that the provision of section 7-61 that states that a resolution shall contain the date of selection is mandatory.” Zerante, 287 Ill. App. 3d at 980. Likewise, in the second case, McSparin, the resolution “did not contain the date upon which [the candidate] was selected” (McSparin, 352 Ill. App. 3d at 356) and was therefore insufficient. The decision in McSparin contains no indication as to whether there was any dispute that the candidate met the three-day filing requirement of section 7-61, but McSparin relied on the holding from Zerante that a resolution must be deemed insufficient where it ” ‘prevent[s] a determination of whether the [resolution was] transmitted to the certifying authority in a timely fashion.’ ” McSparin, 352 Ill. App. 3d at 357, quoting Forcade-Osborn v. Madison County Electoral Board, 334 III. App. 3d 756, 760 (2002), citing Zerante, 287 Ill. App. 3d at 980.
Although Zerante and McSparin discuss whether the date requirement of section 7-61 is mandatory, their holdings cannot be applied directly here, for two reasons. First, even though Zerante held the date requirement of section 7-61 to be mandatory, it did so expressly based on the idea that it was impossible to determine if the resolu-
The view that the date requirement of section 7-61 must be enforced strictly, even if it can be otherwise determined that the resolution was timely filed, finds support in our case law. In Powell v. East St. Louis Electoral Board, 337 Ill. App. 3d 334 (2003), the petitioner “timely filed *** her nominating papers and a receipt evidencing the filing of a statement of economic interests.” Powell, 337 Ill. App. 3d at 338. However, the receipt was not file-stamped by the county clerk, as was required under section 10-5 of the Election Code. See
In Gummersheimer, all of the ballots cast in a particular precinct were invalidated because the election judges in that precinct did not initial the ballots, as was required under the Election Code. Gummersheimer, 192 Ill. 2d 63; see
The exception referenced in Gummersheimer was based on the rule that a statute disenfranchising voters will be declared unconstitutional and not enforced in cases where its application would be arbitrary or unreasonable or would not make a substantial contribution toward insuring the honesty and secrecy of the election. See Gummersheimer, 192 Ill. 2d at 66, citing Craig, 39 Ill. 2d at 194-97, and Pullen, 138 Ill. 2d at 49-54 (summarizing and relying on the hold-
Of course, the issue here is not the rights of voters but, rather, the rights of a candidate. However, restrictions on a candidate‘s access to a place on the ballot receive scrutiny similar to that imposed on statutes that tend to disenfranchise voters: “access to a place on the ballot is a substantial right not lightly to be denied,” and it “should not be impeded by unreasonable, frivolous, or unnecessarily limiting requirements.” Williams v. Butler, 35 Ill. App. 3d 532, 536 (1976), citing Jenness v. Fortson, 403 U.S. 431, 29 L. Ed. 2d 554, 91 S. Ct. 1970 (1971), and Lubin v. Panish, 415 U.S. 709, 39 L. Ed. 2d 702, 94 S. Ct. 1315 (1974); see also Welch v. Johnson, 147 Ill. 2d 40, 56 (1992) (adopting a portion of the above statement from Williams). Based on this language from Williams, I would extend the rationale from Craig and hold that a court may strictly enforce the Election Code‘s restrictions on candidacy to deny a candidate ballot access only where doing so is reasonable and necessary for the purposes of the Election Code. Where such a result would not be reasonable and necessary and thus would not be constitutional, a court must interpret the Election Code in a way that avoids the constitutional infirmity associated with unnecessarily removing a candidate from a ballot.
As noted, the purpose of the date requirement in this case is to ensure compliance with another portion of section 7-61, which requires that nominating resolutions be filed within three days of a candidate‘s selection. Because petitioner here established that her nominating resolution was timely filed, strict enforcement of the date requirement under section 7-61 would serve no purpose recognized by the Election Code. Accordingly, I would hold that we must interpret the date requirement as being directory, and not mandatory, under the facts of this case. For that reason, I agree with the majority that petitioner should not be excluded from the ballot due to her failure to comply with the date requirement of section 7-61.
The majority misrepresents my position when it states that I propose to “reclassify the date requirement of section 7-61 from mandatory to directory.” 385 Ill. App. 3d at 459. I do not propose such a broad holding. I propose that, under the facts of this case, we must
The majority prefers not to expand “the limited application of Craig” because it was decided under “very limited factual circumstances not present here.” 385 III. App. 3d at 459. I cannot disagree that the facts here are different—this is not a case of an election judge failing to initial ballots. My position is that we should extend the holding of Craig to these facts. Beyond noting a factual difference between this case and Craig, the majority offers no explanation as to why the supreme court‘s reasoning in Craig should not apply to the facts of this case. Instead, the majority abruptly changes subject to note that, even if the provision is mandatory in this case, it does not require strict compliance. 385 III. App. 3d at 460. (The majority does not explain the rationale behind this counterintuitive rule that mandatory provisions do not require strict compliance.) The majority then classifies the incorrect date as “[a] minor error” (385 Ill. App. 3d at 461). In Craig, upon which I rely, the supreme court could very well have declared the failure to initial the ballots “minor” and on that basis allowed the ballots to be counted. It did not. Instead, it ruled that the relevant portions of the Election Code should be interpreted as directory under the facts presented. The majority follows a different approach.
I also disagree with the majority‘s conclusion that the error here is “minor.” Section 7-61 requires that the date appear on the face of the nominating resolution so that it can be checked for compliance with the time line contained in the same section. This appears to me to comprise a major, indeed perhaps the most substantive, portion of the section 7-61 requirements for a nominating resolution. I do not agree that the noncompliance with that requirement here was only minor. Nor do I share the majority‘s view that including an incorrect date somehow constitutes more substantial compliance than including no date at all. See 385 Ill. App. 3d at 461. In either case, the candidate will have failed to include the date of selection. The only real difference is that, in the case of an incorrect date, the noncompliance will be more difficult to uncover. Because I would hold that, under the
The majority‘s reasoning is weakened further by its treatment of McSparin and Zerante. As noted, the majority‘s analysis hinges on its erroneous conception that the date error was minor. However, when it distinguishes McSparin and Zerante, the majority relies on the idea that the resolutions in those cases were “facially invalid,” unlike this case, where “petitioner‘s resolution was facially valid, and both the true date of selection and the incorrect date fell within all statutory time constraints.” 385 Ill. App. 3d at 460. The majority offers no explanation as to why the “facial validity” of the resolutions should be considered significant; in fact, it does not even explain where it finds authority containing any requirement, or even any reference, to the notion of “facial validity.” If facial validity is irrelevant to this case (as it must be, since the majority makes no reference to that idea anywhere in its analysis of this case), I do not understand why it should serve as a relevant basis to distinguish McSparin and Zerante.
The closest the majority comes to an explanation of this concept of “facial validity” is its statement that the resolution here was facially valid because “both the true date of selection and the incorrect date fell within all statutory time constraints.” 385 ill. App. 3d at 460. If the majority intends to say that such facial validity is required, the majority is at odds with itself. The crux of its analysis is that a date error is a “minor error” that can be forgiven when the candidate actually complies with the statutory time constraints. This reasoning would apply equally regardless of whether the erroneous date on the resolution fell within the statutory time line (i.e., regardless of whether the erroneous date rendered the resolution facially invalid). After all, a scrivener could just as easily—probably even more easily—make an error that would render the resolution facially invalid as a scrivener could make an error that would render the resolution facially valid.
If facial validity is significant to the majority‘s analysis, it becomes vital that a scrivener‘s error fall within the three-day statutory window. Any scrivener‘s error that does not would metamorphose into a monumental flaw, preventing the candidate from demonstrating that he or she actually complied with the statutory time line. This is quite a consequence, given that whether the scrivener‘s error renders a resolution facially valid or invalid is controlled solely by happenstance. Thus, at best, the majority‘s reference to “facial validity” adds nothing, and, at worst, it undercuts the whole of the majority‘s analysis.
As a final note, the majority appears to criticize my quotation of Williams above on the basis that Williams was abrogated by the